“Without Which Nothing”: Public Law As the Sine Qua Non of Public Administration

Published date01 May 2017
Date01 May 2017
DOIhttp://doi.org/10.1177/0095399717690562
Subject MatterMini-Symposium on Law in the PA Curriculum
https://doi.org/10.1177/0095399717690562
Administration & Society
2017, Vol. 49(5) 634 –657
© The Author(s) 2017
DOI: 10.1177/0095399717690562
journals.sagepub.com/home/aas
Mini-Symposium on Law in the PA Curriculum
“Without Which
Nothing”: Public Law
As the Sine Qua Non of
Public Administration
Phillip J. Cooper1
Abstract
Without public law, there is and can be no public administration in a nation
that is a constitutional republic founded on the rule and supremacy of law.
Public law is the basis for authority and a foundation for discretion. It is also
a basis for creativity and innovation. This article considers how public law
empowers administration, why public service professionals cannot assume
authority and discretion, and why they need to be alert to public law if they
wish to build an innovative public administration for the future particularly
in the contemporary context.
Keywords
public law, administrative law, public administration, Constitution,
administrative rules, Supreme Court
Introduction
No man in this country is so high that he is above the law. No officer of the law
may set that law at defiance with impunity. All the officers of the government,
from the highest to the lowest, are creatures of the law, and are bound to obey
it. (United States v. Lee, 1882, p. 220)
1Portland State University, OR, USA
Corresponding Author:
Phillip J. Cooper, Mark O. Hatfield School of Government, Portland State University, P.O.
Box 751, Portland, OR 97207, USA.
Email: pcooper@pdx.edu
690562AASXXX10.1177/0095399717690562Administration & SocietyCooper
research-article2017
Cooper 635
This is one of the clearest statements of the rule and supremacy of law in the
United States. The first part of the statement is well known even by those who
have never read it and have no idea as to its origin. However, the second sen-
tence is equally important. It states the fundamental principle that all public
officials are officers of the law and are created and empowered by that law.
Their positions exist and have authority only and by virtue of the law. Without
public law, there is and can be no public administration in a nation that is a
constitutional republic founded on the rule and supremacy of law. Indeed,
public law is the sine qua non without which there is no public administration
in the United States or other countries founded on the same principle.
In a time in which public service professionals are so focused on mis-
sion, metrics, and management, it is common to ignore that fundamental
truth, but doing so is problematic and even dangerous, particularly where
those officers assume that they have sufficient authority and jurisdiction to
do what they wish the way they wish to do it. Public law is the basis for
authority and a foundation for discretion. It is also a basis for creativity
and innovation.
This article considers how public law empowers administration, why pub-
lic service professionals cannot assume authority and discretion, and why
they need to be alert to public law if they wish to build an innovative public
administration for the future.
Foundations for Action Without Which Nothing
Neither the statement of the supremacy of law from United States v. Lee nor
Chief Justice John Marshall’s reminder that “the government of the United
States has been emphatically termed a government of laws, and not of men”
(Marbury v. Madison, 1803, p. 163) should be taken to mean that law is only
or even primarily something that limits public administrators, because the
purpose of much of public law is to empower and enable them. That is not
only true of the Constitution but of the rest of the law that is essential to effec-
tive governance.
The Constitution: A Necessary But Not Sufficient Foundation for
Public Administration
The primary purpose of the Constitution was to create efficacious govern-
ment and to do so in the face of a disastrous experience under the Articles of
Confederation, including the continuing bad behavior by state governments.
The framers understood that the task required not only framing a government
structurally but also empowering it so that it could be administered

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